mmmmm 


GIFT  OF 


The 
Transfer  Tax  Law 


THE 

TRANSFER  TAX  LAW 

OF  THE  STATE  OF  NEW  YORK 


COMPLETE 

'    Including  the  Amendments 
of  1915 
being  the  Article  entitled 

"TAXABLE  TRANSFERS" 

constituting 

Article  10,  Chapter  62,  of  the  Laws  of  1909 

as  amended  by 

Laws  of  1910,  Chapter  706 
Laws  of  1911,  Chapter  732 
Laws  of  1913,  Chapter  639 
Laws  of  1915,  Chapter  664 


IN  EFFECT  MAY  20,  1915 


Privately  Printed 

GUARANTY  TRUST  COMPANY  of  NEW  YORK 
140  BROADWAY 

Fifth  Ave.  Branch  ,  ,  LonJou  Office 

Fifth  Ave.  and  43rd  St.  ;    ;  •   >3  Lomi>ifd  St.,  E.  C. 


Copyright,  1915 
Guaranty  Trust  Company  of  New  York 


FOREWORD 

There  is  here  presented  the  text  of  the 
Inheritance  Tax  Law  of  the  State  of  New 
York,  including  the  amendments  passed  at 
the  legislative  session  of  1915. 

By  the  recent  amendments  the  transfer  of 
certain  intangible  property  of  non-residents, 
whether  by  will  or  intestate  law,  or  made 
'Hnter  vivos''  in  contemplation  of  death, 
is  now  made  taxable. 

An  interest  in  any  partnership  business 
conducted  wholly  or  partly  within  the  State 
of  New  York,  is  made  taxable  in  such  pro- 
portion as  the  value  of  the  entire  property  of 
such  partnership  located  in  the  State  of  New 
York  bears  to  the  value  of  the  entire  part- 
nership. 

Intangible  property,  consisting  of  shares 
of  stock,  bonds,  notes  or  other  evidence  of 
interest  in  any  corporation,  joint  stock  com- 
pany or  association,  where  the  property  rep- 
resented by  such  shares  of  stock,  bonds, 
notes  or  other  evidence  of  interest  consists 
of  real  property  located  wholly  or  partly 
within  the  State  of  New  York,  is  made  tax- 
able in  such  proportion  as  the  value  of  the 
real  property  of  such  corporation,  joint  stock 
company  or  association,  located  in  the  State 
of  New  York,  bears  to  the  value  of  the  entire 


331929 


propertj^'ot  sucicbrporation,  joint  stock  com- 
pany or  association,  the  securities  of  the  fol- 
lowing corporations  being  exempted: 

Moneyed  corporations, 

Railroad  or  transportation  companies, 

Public  service  companies. 

Manufacturing  corporations, 
as  defined  and  classified  by  the  Laws  of  this 
State. 

A  further  radical  change  has  been  made,  in 
that  intangible  property  held  by  residents  of 
the  State  of  New  York  as  joint  tenants  is 
made  taxable  to  the  survivor  as  if  the  whole 
thereof  had  been  bequeathed  to  the  survivor 
by  the  deceased  joint  tenant. 


ARTICLE  10 
Taxable  Transfers 

Section 
2£0.    Taxable  transfers. 
£21.    Exceptions  and  limitations. 
«21a.  Rates  of  tax. 
£21b.  Exemption  of  certain  personal  property. 

222.  Accrual  and  payment  of  tax. 

223.  Discount  and  interest. 

224.  Lien  of  tax  and  collection  by  executors,  administrators 

and  trustees. 

225.  Refund  of  tax  erroneously  paid. 

226.  Taxes  upon  devises  and   bequests  in  lieu  of  com- 

missions. 

227.  Liability  of  certain  corporations  to  tax. 

228.  Jurisdiction  of  the  surrogate. 

229.  Appointment  of  appraisers,  stenographers  and  clerks. 

230.  Proceedings  by  appraiser. 
281.    Determination  of  surrogate. 

232.  Appeal  and  other  proceedings. 

233.  Composition  of  transfer  tax  upon  certain  estates. 

234.  Surrogates'  compensation  and  surrogates'  assistants  in 

New  York,  Kings  and  other  coimties. 

235.  Proceedings  by  district  attorneys. 

236.  Receipts  from  county  treasurer  or  comptroller. 

237.  Fees  of  county  treasurer. 

238.  Books  and  forms  to  be  furnished  by  the  state  comp- 

troller. 

239.  Reports  of  surrogate  and  county  clerk. 

240.  Reports  of  county  treasurer. 

241.  Report  of  state  comptroller;  payment  of  taxes;  re- 

funds in  certain  cases. 

242.  Application  of  taxes. 

243.  Definitions. 

244.  Exemptions  in  article  one  not  applicable. 

245.  Limitation  of  time. 


Taxable  transfers.  A  tax  shall  be 
and  is  hereby  imposed  upon  the  transfer  of 
any  tangible  property  within  the  state  and 
of  intangible  property,  or  of  any  interest 
therein  or  income  therefrom,  in  trust  or  other- 
wise, to  persons  or  corporations  in  the  follow- 
ing cases,  subject  to  the  exemptions  and  lim- 
itations hereinafter  prescribed : 

1.  When  the  transfer  is  by  will  or  by  the 
intestate  laws  of  this  state  of  any  intangible 
property,  or  of  tangible  property  within  the 
state,  from  any  person  dying  seized  or  pos- 
sessed thereof  while  a  resident  of  the  state. 

2.  When  the  transfer  is  by  will  or  intestate 
law,  of  tangible  property  within  the  state  or 
of  any  intangible  property,  if  evidenced  by  or 
consisting  of  shares  of  stock,  bonds,  notes  or 
other  evidences  of  interest  in  any  corporation, 
joint  stock  company  or  association  wherever 
incorporated  or  organized,  except  a  corporation, 
foreign  or  domestic,  or  joint  stock  company  or 
association  constituting,  being  or  in  the  nature 
of  a  moneyed  corporation,  a  railroad  or  trans- 
portation corporation,  or  a  public  service  or 
manufacturing  corporation  as  defined  and 
classified  by  the  laws  of  this  state,  and  the 
property  represented  by  such  shares  of  stock, 
bonds,  notes  or  other  evidences  of  interest  con- 
sists of  real  property  which  is  located,  wholly 
or  partly,  within  the  state  of  New  York,  or  of 
an  interest  in  any  partnership  business  con- 
ducted, wholly  or  partly,  within  the  state  of 
New  York,  in  such  proportion  as  the  value  of 
the  real  property  of  such  corporation,  joint 


stock  company  or  association,  or  as  the  value 
of  the  entire  property  of  such  partnership 
located  in  the  state  of  New  York  bears  to  the 
value  of  the  entire  property  of  such  corporation, 
joint  stock  company  or  association  or  partner- 
ship, and  the  decedent  was  a  nonresident  of 
the  state  at  the  time  of  his  death. 

3.  Whenever  the  property  of  a  resident  de- 
cedent, or  the  property  of  a  nonresident  de- 
cedent within  this  state,  transferred  by  will 
is  not  specifically  bequeathed  or  devised,  such 
property  shall,  for  the  purposes  of  this  article, 
be  deemed  to  be  transferred  proportionately 
to  and  divided  pro  rata  among  all  the  general 
legatees  and  devisees  named  in  said  de- 
cedent's will,  including  all  transfers  under  a 
residuary  clause  of  such  will. 

4.  When  the  transfer  is  of  intangible  prop- 
erty, or  of  tangible  property  within  the  state, 
made  by  a  resident,  or  of  tangible  property 
within  the  state  or  of  any  intangible  property, 
if  evidenced  by  or  consisting  of  shares  of  stock, 
bonds,  notes  or  other  evidences  of  interest  in  any 
corporation,  joint  stock  company  or  association 
wherever  incorporated  or  organized,  except  a 
corporation,  foreign  or  domestic,  or  joint  stock 
company  or  association  constituting,  being  or  in 
the  nature  of  a  moneyed  corporation,  a  railroad 
or  transportation  corporation,  or  a  public  ser- 
vice  or  manufacturing  corporation  as  defined 
and  classified  by  the  laws  of  this  state,  and  the 
property  represented  by  such  shares  of  stock, 
bonds,  notes  or  other  evidences  of  interest  con- 
sists of  real  property  which  is  located,  wholly 
or  partly,  within  the  state  of  New  York,  or  of 


an  interest  in  any  partnership  business  con- 
ditcted,  wholly  or  partly,  within  the  state  of 
New  York,  in  such  proportion  as  the  value  of 
the  real  property  of  such  corporation,  joint 
stock  company  or  association,  or  as  the  value 
of  the  entire  property  of  such  partnership 
located  in  the  state  of  New  York  bears  to  the 
value  of  the  entire  property  of  such  corporation, 
joint  stock  company  or  association  or  partner- 
ship made  by  a  nonresident,  by  deed,  grant, 
bargain,  sale  or  gift  made  in  contemplation 
of  the  death  of  the  grantor,  vendor  or  donor 
or  intended  to  take  effect  in  possession  or 
enjoyment  at  or  after  such  death. 

5.  When  any  such  person  or  corporation 
becomes  beneficially  entitled,  in  possession  or 
expectancy,  to  any  property  or  the  income 
thereof  by  any  such  transfer  whether  made 
before  or  after  the  passage  of  this  chapter. 

6.  Whenever  any  person  or  corporation 
shall  exercise  a  power  of  appointment  de- 
rived from  any  disposition  of  property  made 
either  before  or  after  the  passage  of  this 
chapter,  such  appointment  when  made  shall 
be  deemed  a  transfer  taxable  under  the  pro- 
visions of  this  chapter  in  the  same  manner 
as  though  the  property  to  which  such  ap- 
pointment relates  belonged  absolutely  to  the 
donee  of  such  power  and  had  been  bequeathed 
or  devised  by  such  donee  by  will. 

7.  Whenever  intangible  property  is  held  in 
the  joint  names  of  two  or  more  persons,  or  as 
tenants  by  the  entirety,  or  is  deposited  in  banks 
or  other  institutions  or  depositaries  in  the  joint 
names  of  two  or  more  persons  and  payable  to 

10 


either  or  the  survivor^  upon  the  death  of  one  of 
such  persons  the  right  of  the  surviving  tenant 
by  the  entirety,  joint  tenant  or  joint  tenants, 
person  or  persons,  to  the  immediate  ownership 
or  possession  and  enjoyment  of  such  property 
shall  be  deemed  a  transfer  taxable  under  the 
provisions  of  this  chapter  in  the  same  manner 
as  though  the  whole  property  to  which  such 
transfer  relates  belonged  absolutely  to  the  de- 
ceased tenant  by  the  entirety,  joint  tenant  or 
joint  depositor  and  had  been  bequeathed  to  the 
surviving  tenant  by  the  entirety,  joint  tenant 
or  joint  tenants,  person  or  persons,  by  such 
deceased  tenant  by  the  entirety,  joint  tenant 
or  joint  depositor  by  will. 

8.  The  tax  imposed  hereby  shall  be  upon 
the  clear  market  value  of  such  property,  at 
the  rates  hereinafter  prescribed. 

§221.  Exceptions  and  limitations.  Any 
property  devised  or  bequeathed  for  religious 
ceremonies,  observances  or  commemorative 
services  of  or  for  the  deceased  donor,  or  to 
any  person  who  is  a  bishop  or  to  any  re- 
ligious, educational,  charitable,  missionary, 
benevolent,  hospital  or  infirmary  corpora- 
tion, wherever  incorporated,  including  cor- 
porations organized  exclusively  for  bible  or 
tract  purposes  and  corporations  organized 
for  the  erlorcement  of  laws  relating  to  chil- 
dren or  animals,  shall  be  exempted  from  and 
not  subject  to  the  provisions  of  this  article. 
There  shall  also  be  exempted  from  and  not 
subject  to  the  provisions  of  this  article  per- 
sonal property  other  than  money  or  securi- 
11 


ties  bequeathed  to  a  corporation  or  associa- 
tion wherever  incorporated  or  located,  or- 
ganized exclusively  for  the  moral  or  mental 
improvement  of  men  or  women  or  for  scien- 
tific, literary,  library,  patriotic,  cemetery  or 
historical  purposes  or  for  two  or  more  of 
such  purposes  and  used  exclusively  for  carry- 
ing out  one  or  more  of  such  purposes.  But 
no  such  corporation  or  association  shall  be 
entitled  to  such  exemption  if  any  officer, 
member  or  employee  thereof  shall  receive 
or  may  be  lawfully  entitled  to  receive  any 
pecuniary  profit  from  the  operations  thereof 
except  reasonable  compensation  for  services 
in  effecting  one  or  more  of  such  purposes  or 
as  proper  beneficiaries  of  its  strictly  chari- 
table purposes;  or  if  the  organization  thereof 
for  any  such  avowed  purpose  be  a  guise  or 
pretense  for  directly  or  indirectly  making 
any  other  pecuniary  profit  for  such  corpora- 
tion or  association  or  for  any  of  its  members 
or  employees  or  if  it  be  not  in  good  faith 
organized  or  conducted  exclusively  for  one 
or  more  of  such  purposes. 

§221-a.  Rates  of  tax.  1.  Upon  all  trans- 
fers taxable  under  this  article  of  property  or 
any  beneficial  interest  therein,  of  an  amount 
in  excess  of  the  value  of  five  thousand  dol- 
lars to  any  father,  mother,  husband,  wife, 
child,  brother,  sister,  wife  or  widow  of  a  son, 
or  the  husband  of  a  daughter,  or  any  child 
or  children  adopted  as  such  in  conformity 
with  the  laws  of  this  state,  of  the  decedent, 
grantor,  donor,  or  vendor,  or  to  any  child  to 

12 


whom  any  such  decedent,  grantor,  donor,  or 
vendor  for  not  less  than  ten  years  prior  to 
such  transfer  stood  in  the  mutually  acknowl- 
edged relation  of  a  parent,  provided,  how- 
ever, such  relationship  began  at  or  before 
the  child's  fifteenth  birthday  and  was  con- 
tinuous for  said  ten  years  thereafter,  or  to 
any  lineal  descendant  of  such  decedent, 
grantor,  donor,  or  vendor  born  in  lawful 
wedlock,  the  tax  on  such  transfer  shall  be 
at  the  rate  of 

One  per  centum  on  any  amount  in  excess 
of  five  thousand  dollars  up  to  the  sum  of 
fifty  thousand  dollars. 

Two  per  centum  on  any  amount  in  excess 
of  fifty  thousand  dollars  up  to  the  sum  of 
two  hundred  and  fifty  thousand  dollars. 

Three  per  centum  on  any  amount  in  ex- 
cess of  two  hundred  and  fifty  thousand 
dollars  up  to  the  sum  of  one  million  dollars. 

Four  per  centum  on  any  amount  in  excess 
of  one  million  dollars.^ 

2.  Upon  a  transfer  taxable  under  this 
article  of  property  or  any  beneficial  interest 
therein  of  an  amount  in  excess  of  the  value 
of  one  thousand  dollars  to  any  person  or 


^Illustration. — The  tax  rates,  as  applied  to  direct 

heirs,  operate  as  follows,  using 

$2,000,00C 

)  as  the  total 

amount  of  bequest  to  one  person: 

Amount 

Rate 

Tax 

$        5,000 

Exempt 

$      000 

The  next.  ...          50,000 

1% 

500 

The  next..  ..        250,000 

2% 

5,000 

The  next....     1,000,000 

3% 

30,000 

The  next....        695,000 

4% 

27,800 

$2,000,000 

$63,300 

13 

corporation  other  than  those  enumerated  in 
paragraph  one  of  this  section,  the  tax  shall 
be  at  the  rate  of 

Five  per  centum  on  any  amount  in  excess 
of  one  thousand  dollars  up  to  the  sum  of 
fifty  thousand  dollars. 

Six  per  centum  on  any  amount  in  excess 
of  fifty  thousand  dollars  up  to  the  sum  of 
two  hundred  and  fifty  thousand  dollars. 

Seven  per  centum  on  any  amount  in  ex- 
cess of  two  hundred  and  fifty  thousand  dol- 
lars up  to  the  sum  of  one  million  dollars. 

Eight  per  centum  on  any  amount  in  ex- 
cess of  one  million  dollars.^ 

§  221-b.  Exemption  of  certain  personal 
property.  A  transfer  of  pictures,  statuary, 
works  of  art,  antiques,  books,  manuscripts 
or  other  similar  personal  property  shall  be 
exempted  from  and  not  subject  to  the  pro- 
visions of  this  article,  if  within  two  years 
after  such  transfer  the  person  to  whom  such 
transfer  is  made  shall  present  the  same  to 
the  state,  or  to  a  municipal  corporation  of 
the  state  for  educational,  scientific,  literary, 
library,  or  historical  purposes;  and  if  the 


^Illustration. — The  method  of  computing  the  tax         | 

under  the  new  law  is  illustrated  in  the 

'oUowing  table        j 

calculated  up  to  a  $2,000,000  bequest  to 

one  person: 

Amount 

Rate 

Tax 

$       1,000 

Exempt 

$      000 

The  next..  ..          50,000 

5% 

2,500 

The  next 250,000 

6% 

15,000 

The  next.  ...     1,000,000 

7% 

70,000 

The  next 699,000 

8% 

55,920 

$2,000,000 

$143,420 

14 

tax  thereon  shall  have  been  theretofore  paid 
the  amount  thereof  shall  be  refunded  in  ac- 
cordance with  the  provisions  of  this  article. 

§  222.  Accrual  and  payment  of  tax.  AH 
taxes  imposed  by  this  article  shall  be  due 
and  payable  at  the  time  of  the  transfer, 
except  as  herein  otherwise  provided.  Taxes 
upon  the  transfer  of  any  estate,  property 
or  interest  therein  limited,  conditioned,  de- 
pendent or  determinable  upon  the  happen- 
ing of  any  contingency  or  future  event  by 
reason  of  which  the  fair  market  value  thereof 
can  not  be  ascertained  at  the  time  of  the 
transfer  as  herein  provided,  shall  accrue  and 
become  due  and  payable  when  the  persons 
or  corporations  beneficially  entitled  thereto 
shall  come  into  actual  possession  or  enjoy- 
ment thereof.  Such  tax  shall  be  paid  to 
the  state  comptroller  in  a  county  in  which 
the  office  of  appraiser  is  salaried,  and  in 
other  counties,  to  the  county  treasurer,  and 
said  state  comptroller  or  county  treasurer 
shall  give,  and  every  executor,  administrator 
or  trustee  shall  take,  duplicate  receipts  from 
him  of  such  payment  as  provided  in  section 
two  hundred  and  thirty-six. 

§  223.  Discount  and  interest.  If  such 
tax  is  paid  within  six  months  from  the  ac- 
crual thereof,  a  discount  of  five  per  centum 
shall  be  allowed  and  deducted  therefrom.  If 
such  tax  is  not  paid  within  eighteen  months 
from  the  accrual  thereof,  interest  shall  be 
charged  and  collected  thereon  at  the  rate  of 

15 


ten  per  centum  per  annum  from  the  time 
the  tax  accrued;  unless  by  reason  of  claims 
made  upon  the  estate,  necessary  litigation 
or  other  unavoidable  cause  of  delay,  such 
tax  can  not  be  determined  and  paid  as  herein 
provided,  in  which  case  interest  at  the  rate 
of  six  per  centum  per  annum  shall  be  charged 
upon  such  tax  from  the  accrual  thereof  until 
the  cause  of  such  delay  is  removed,  after 
which  ten  per  centum  shall  be  charged. 

§  224.  Lien  of  tax  and  collection  by  ex- 
ecutors, administrators  and  trustees.  Every 
such  tax  shall  be  and  remain  a  lien  upon 
the  property  transferred  until  paid  and  the 
person  to  whom  the  property  is  so  trans- 
ferred, and  the  executors,  administrators  and 
trustees  of  every  estate  so  transferred  shall 
be  personally  liable  for  such  tax  until  its 
payment.  Every  executor,  administrator  or 
trustee  shall  have  full  power  to  sell  so  much 
of  the  property  of  the  decedent  as  will  enable 
him  to  pay  such  tax  in  the  same  manner  as 
he  might  be  entitled  by  law  to  do  for  the 
payment  of  the  debts  of  the  testator  or  in- 
testate. Any  such  executor,  administrator 
or  trustee  having  in  charge  or  in  trust  any 
legacy  or  property  for  distribution  subject 
to  such  tax  shall  deduct  the  tax  therefrom 
and  shall  pay  over  the  same  to  the  state 
comptroller  or  county  treasurer,  as  herein 
provided.  If  such  legacy  or  property  be  not 
in  money,  he  shall  collect  the  tax  thereon 
upon  the  appraised  value  thereof  from  the 
person  entitled  thereto.     He  shall  not  deliver 

16 


or  be  compelled  to  deliver  any  specific  legacy 
or  property  subject  to  tax  under  this  article 
to  any  person  until  lie  shall  have  collected 
the  tax  thereon.  If  any  such  legacy  shall  be 
charged  upon  or  payable  out  of  real  property, 
the  heir  or  devisee  shall  deduct  such  tax 
therefrom  and  pay  it  to  the  executor,  ad- 
ministrator or  trustee,  and  the  tax  shall  re- 
main a  lien  or  charge  on  such  real  property 
until  paid;  and  the  payment  thereof  shall 
be  enforced  by  the  executor,  administrator 
or  trustee  in  the  same  manner  that  payment 
of  the  legacy  might  be  enforced,  or  by  the 
district  attorney  under  section  two  hundred 
and  thirty-five  of  this  chapter.  If  any  such 
legacy  shall  be  given  in  money  to  any  such 
person  for  a  limited  period,  the  executor, 
administrator  or  trustee  shall  retain  the  tax 
upon  the  whole  amount,  but  if  it  be  not  in 
money,  he  shall  make  application  to  the 
court  having  jurisdiction  of  an  accounting 
by  him,  to  make  an  apportionment,  if  the 
case  require  it,  of  the  sum  to  be  paid  into 
his  hands  by  such  legatees,  and  for  such 
further  order  relative  thereto  as  the  case 
may  require. 

§  225.  Refund  of  tax  erroneously  paid. 
If  any  debts  shall  be  proven  against  the 
estate  of  a  decedent  after  the  payment  of 
any  legacy  or  distributive  share  thereof,  from 
which  any  such  tax  has  been  deducted  or 
upon  which  it  has  been  paid  by  the  person 
entitled  to  such  legacy  or  distributive  share, 
and  such  person  is  required  by  order  of  the 

17 


surrogate  having  jurisdiction,  on  notice  to 
the  state  comptroller,  to  refund  the  amount 
of  such  debts  or  any  part  thereof,  an  equi- 
table proportion  of  the  tax  shall  be  repaid  to 
him  by  the  executor,  administrator  or  trus- 
tee, if  the  tax  has  not  been  paid  to  the  state 
comptroller  or  county  treasurer;  or  if  such 
tax  has  been  paid  to  such  state  comptroller 
or  county  treasurer,  such  officer  shall  refund 
out  of  the  funds  in  his  hands  or  custody  to 
the  credit  of  such  taxes  such  equitable  pro- 
portion of  the  tax,  and  credit  himself  with 
the  same  in  the  account  required  to  be  ren- 
dered by  him  under  this  article.  If  after 
the  payment  of  any  tax  in  pursuance  of  an 
order  fixing  such  tax,  made  by  the  surro- 
gate having  jurisdiction,  such  order  be 
modified  or  reversed  by  the  surrogate 
having  jurisdiction  within  two  years  from 
and  after  the  date  of  entry  of  the  order 
fixing  the  tax,  or  be  modified  or  reversed 
at  any  time  on  an  appeal  taken  therefrom 
within  the  time  allowed  by  law  on  due  notice 
to  the  state  comptroller,  the  state  comp- 
troller shall,  if  such  tax  was  paid  in  a  county 
in  which  the  office  of  appraiser  is  salaried, 
refund  to  the  executor,  administrator,  trus- 
tee, person  or  persons  by  whom  such  tax 
was  paid,  the  amount  of  any  moneys  paid 
or  deposited  on  account  of  such  tax  in  ex- 
cess of  the  amount  of  the  tax  fixed  by  the 
order  modified  or  reversed,  out  of  the  funds 
in  his  hands  or  custody  to  the  credit  of  such 
taxes,  and  to  credit  himself  with  the  same 
in  the  account  required  to  be  rendered  by 
18 


him  under  this  article,  or  if  paid  in  a  county 
in  which  the  oflSce  of  appraiser  is  not  salaried, 
he  shall  by  warrant  direct  and  allow  the 
county  treasurer  of  the  county  to  refund 
such  amount  in  the  same  manner;  but  no 
application  for  such  refund  shall  be  made 
after  one  year  from  such  reversal  or  modifica- 
tion, unless  an  appeal  shall  be  taken  there- 
from, in  which  case  no  such  application  shall 
be  made  after  one  year  from  the  final  deter- 
mination on  such  appeal  or  of  an  appeal 
taken  therefrom,  and  the  representatives  of 
the  estate,  legatees,  devisees  or  distributees 
entitled  to  any  refund  under  this  section 
shall  not  be  entitled  to  any  interest  upon 
such  refund,  and  the  state  comptroller  shall 
deduct  from  the  fees  allowed  by  this  article 
to  the  county  treasurer  the  amount  thereto- 
fore allowed  him  upon  such  overpayment. 
Where  it  shall  be  proved  to  the  satisfaction 
of  the  surrogate  that  deductions  for  debts 
were  allowed  upon  the  appraisal,  since  proved 
to  have  been  erroneously  allowed,  it  shall  be 
lawful  for  such  surrogate  to  enter  an  order 
assessing  the  tax  upon  the  amount  wrong- 
fully or  erroneously  deducted.  This  section, 
as  amended,  shall  apply  to  appeals  and  pro- 
ceedings now  pending  and  taxes  heretofore 
paid  in  relation  to  which  the  period  of  one 
year  from  such  reversal  or  modification  has 
not  expired  when  this  section,  as  amended, 
takes  effect. 

§  226.     Taxes  upon  devises  and  bequests 
in  lieu  of  commissions.    If   a    testator   be- 

19 


queaths  or  devises  property  to  one  or  more 
executors  or  trustees  in  lieu  of  their  com- 
missions or  allowances,  or  makes  them  his 
legatees  to  an  amount  exceeding  the  com- 
missions or  allowances  prescribed  by  law  for 
an  executor  or  trustee,  the  excess  in  value 
of  the  property  so  bequeathed  or  devised 
above  the  amount  of  commissions  or  allow- 
ances prescribed  by  law  in  similar  cases  shall 
be  taxable  under  this  article. 

§  227.  Liability  of  certain  corporations  to 
tax.  If  a  foreign  executor,  administrator 
or  trustee  shall  assign  or  transfer  any  stock 
or  obligations  in  this  state  standing  in  the 
name  of  a  decedent,  or  in  trust  for  a  de- 
cedent, liable  to  any  such  tax,  the  tax  shall 
be  paid  to  the  state  comptroller  or  the  treas- 
urer of  the  proper  county  on  the  transfer 
thereof.  No  safe  deposit  company,  trust  com- 
pany, corporation,  bank  or  other  institution, 
person  or  persons  having  in  possession  or 
under  control  securities,  deposits,  or  other 
assets  belonging  to  or  standing  in  the  name 
of  a  decedent  who  was  a  resident  or  non- 
resident, or  belonging  to,  or  standing  in  the 
joint  names  of  such  decedent  and  one  or 
more  persons,  including  the  shares  of  the 
capital  stock  of,  or  other  interests  in,  the 
safe  deposit  company,  trust  company,  cor- 
poration, bank  or  other  institution  making 
the  delivery  or  transfer  herein  provided, 
shall  deliver  or  transfer  the  same  to  the 
executors,  administrators  or  legal  representa- 
tives of  said  decedent,  or  to  the  survivor  or 


survivors  when  held  in  the  joint  names  of  a 
decedent  and  one  or  more  persons,  or  upon 
their  order  or  request,  unless  notice  of  the 
time  and  place  of  such  intended  delivery  or 
transfer  be  served  upon  the  state  comptroller 
at  least  ten  days  prior  to  said  delivery  or 
transfer;  nor  shall  any  such  safe  deposit  com- 
pany, trust  company,  corporation,  bank  or 
other  institution,  person  or  persons  deliver  or 
transfer  any  securities,  deposits  or  other  as- 
sets belonging  to  or  standing  in  the  name  of 
a  decedent,  or  belonging  to,  or  standing  in 
the  joint  names  of  a  decedent  and  one  or 
more  persons,  including  the  shares  of  the 
capital  stock  of,  or  other  interests  in,  the 
safe  deposit  company,  trust  company,  cor- 
poration, bank  or  other  institution  making 
the  delivery  or  transfer,  without  retaining  a 
sufficient  portion  or  amount  thereof  to  pay 
any  tax  and  interest  which  may  thereafter 
be  assessed  on  account  of  the  delivery  or 
transfer  of  such  securities,  deposits  or  other 
assets,  including  the  shares  of  the  capital 
stock  of,  or  other  interests  in,  the  safe  deposit 
company,  trust  company,  corporation,  bank 
or  other  institution  making  the  delivery  or 
transfer,  under  the  provisions  of  this  article, 
unless  the  state  comptroller  consents  thereto 
in  writing.  And  it  shall  be  lawful  for  the 
said  state  comptroller,  personally  or  by  rep- 
resentative, to  examine  said  securities,  de- 
posits or  assets  at  the  time  of  such  delivery 
or  transfer.  Failure  to  serve  such  notice  or 
failure  to  allow  such  examination  or  failure 
to  retain  a  sufficient  portion  or  amount  to 

SI 


pay  such  tax  and  interest  as  herein  provided 
shall  render  said  safe  deposit  company,  trust 
company,  corporation,  bank  or  other  insti- 
tution, person  or  persons  liable  to  the  pay- 
ment of  the  amount  of  the  tax  and  interest 
due  or  thereafter  to  become  due  upon  said 
securities,  deposits  or  other  assets,  including 
the  shares  of  the  capital  stock  of,  or  other  in- 
terests in,  the  safe  deposit  company,  trust 
company,  corporation,  bank  or  other  insti- 
tution making  the  delivery  or  transfer,  and 
in  addition  thereto,  a  penalty  of  not  less 
than  five  or  more  than  twenty-five  thousand 
dollars;  and  the  payment  of  such  tax  and 
interest  thereon,  or  of  the  penalty  above 
prescribed,  or  both,  may  be  enforced  in  an 
action  brought  by  the  state  comptroller  in 
any  court  of  competent  jurisdiction. 

§  228.  Jurisdiction  of  the  surrogate.  The 
surrogate's  court  of  every  county  of  the 
state  having  jurisdiction  to  grant  letters  tes- 
tamentary or  of  administration  upon  the 
estate  of  a  decedent  whose  property  is  charge- 
able with  any  tax  under  this  article,  or  to 
appoint  a  trustee  of  such  estate  or  any  part 
thereof,  or  to  give  ancillary  letters  thereon, 
shall  have  jurisdiction  to  hear  and  determine 
all  questions  arising  under  the  provisions  of 
this  article,  and  to  do  any  act  in  relation 
thereto  authorized  by  law  to  be  done  by  a 
surrogate  in  other  matters  or  proceedings 
coming  within  his  jurisdiction;  and  if  two 
or  more  surrogates'  courts  shall  be  entitled 
to  exercise  any  such  jurisdiction,  the  surro- 

22 


gate  first  acquiring  jurisdiction  hereunder 
shall  retain  the  same  to  the  exclusion  of 
every  other  surrogate.  Every  petition  for 
ancillary  letters  testamentary  or  ancillary 
letters  of  administration  made  in  pursuance 
of  the  provisions  of  article  seven,  title  three, 
chapter  eighteen  of  the  code  of  civil  pro- 
cedure shall  set  forth  the  name  of  the  state 
comptroller  as  a  person  to  be  cited  as  therein 
prescribed,  and  a  true  and  correct  statement 
of  all  the  decedent's  property  in  this  state 
and  the  value  thereof;  and  upon  the  pres- 
entation thereof  the  surrogate  shall  issue  a 
citation  directed  to  the  state  comptroller; 
and  upon  the  return  of  the  citation  the  sur- 
rogate shall  determine  the  amount  of  the  tax 
which  may  be  or  become  due  under  the  pro- 
visions of  this  article  and  his  decree  awarding 
the  letters  may  contain  any  provision  for  the 
payment  of  such  tax  or  the  giving  of  security 
therefor  which  might  be  made  by  such  sur- 
rogate if  the  state  comptroller  were  a  creditor 
of  the  decedent. 

§  229.  Appointment  of  appraisers,  stenog- 
raphers and  clerks.  The  state  comptroller 
shall  appoint  and  may  at  pleasure  remove 
not  to  exceed  six  persons  in  the  county  of 
New  York,  four  persons  in  the  counties  of 
Kings,  and  Bronx,  and  one  person  in  the 
counties  of  Albany,  Dutchess,  Erie,  Monroe, 
Nassau,  Niagara,  Oneida,  Onondaga,  Orange, 
Queens,  Rensselaer,  Richmond,  Suffolk  and 
Westchester,  to  act  as  appraisers  therein. 
The  state  comptroller,  from  time  to  time  and 

23 


whenever  in  his  opinion  it  is  necessary,  may 
also  appoint  and  at  pleasure  remove  not  to 
exceed  two  additional  persons  to  act  as  trans- 
fer tax  appraisers  in  the  county  of  New  York, 
to  whom  shall  be  referred  the  appraisal  of 
delinquent  estates  pending  before  the  trans- 
fer tax  appraisers  in  New  York  county,  where 
more  than  eighteen  months  have  elapsed  since 
the  death  of  such  decedents,  respectively, 
and  also  to  act  as  appraiser  of  other  estates 
whenever  it  shall  appear  to  the  comptroller 
that  the  services  of  such  additional  appraiser 
is  necessary.  The  appraiser  so  appointed 
shall  receive  an  annual  salary  to  be  fixed 
by  the  state  comptroller,  together  with  their 
actual  and  necessary  traveling  expenses  and 
witness  fees,  as  hereinafter  provided,  pay- 
able monthly  by  the  state  comptroller  out 
of  any  funds  in  his  hands  or  custody  on 
account  of  transfer  tax.  The  salaries  of  each 
of  the  appraisers  so  appointed  shall  not  ex- 
ceed the  following  amounts;  In  New  York 
county,  four  thousand  dollars;  in  Kings  and 
Bronx  counties,  four  thousand  dollars;  in 
Albany,  Erie,  Queens  and  Westchester  coun- 
ties, three  thousand  dollars;  in  Nassau, 
Orange  and  Rensselaer  counties,  two  thou- 
sand dollars;  in  Monroe,  Oneida  and  Onon- 
daga counties,  one  thousand  five  hundred 
dollars;  in  Dutchess,  Niagara,  Richmond, 
and  Suffolk  counties,  one  thousand  dollars. 
Each  of  the  said  appraisers  shall  file  with 
the  state  comptroller  his  oath  of  office  and 
his  oflScial  bond  in  the  penal  sum  of  not  less 
than  one  thousand  dollars,  in  the  discretion 

24 


of  the  state  comptroller,  conditioned  for  the 
faithful  performance  of  his  duties  as  such 
appraiser,  which  bond  shall  be  approved  by 
the  attorney-general  and  the  state  comp- 
troller. The  state  comptroller  shall  retain 
out  of  any  funds  in  his  hands  on  account  of 
said  tax  the  following  amounts :  First,  a  sum 
sufficient  to  provide  the  appraisers  of  New 
York  county  with  one  managing  clerk,  at  a 
salary  not  to  exceed  four  thousand  dollars 
a  year,  whose  duties  shall  be  prescribed  by 
the  state  comptroller,  nine  stenographers, 
three  clerks,  one  examiner  of  values,  and 
one  assistant  examiner  of  values,  whose  sal- 
aries shall  not  exceed  two  thousand  dollars 
a  year  each,  and  one  junior  clerk,  whose 
salary  shall  not  exceed  six  hundred  dollars 
a  year;  the  appraisers  of  Kings  and  Bronx 
counties,  with  four  stenographers,  whose  sal- 
aries shall  not  exceed  two  thousand  dollars 
a  year  each,  one  clerk,  whose  salary  shall  not 
exceed  seven  hundred  and  twenty  dollars  a 
year;  one  page,  whose  salary  shall  not  ex- 
ceed four  hundred  and  eighty  dollars  a  year, 
and  the  appraiser  of  Erie  county  with  one 
clerk,  whose  salary  shall  not  exceed  fifteen 
hundred  dollars  a  year,  and  the  appraiser 
of  Westchester  county  with  one  clerk,  whose 
salary  shall  not  exceed  the  sum  of  twelve 
hundred  dollars  a  year,  and  the  appraiser 
of  Queens  county  with  one  clerk,  whose 
salary  shall  not  exceed  the  sum  of  twelve 
hundred  dollars  a  year,  and  the  appraiser  of 
Oneida  county  with  one  stenographer,  whose 
salary  shall  not  exceed  the  sum  of  nine  hun- 

25 


dred  dollars  a  year,  such  employees  to  be 
appointed  by  the  state  comptroller.  The 
state  comptroller  shall  also  retain  out  of 
any  funds  in  his  hands  on  account  of  said 
tax  a  sum  sufficient  to  provide  each  of  the 
additional  transfer  tax  appraisers  in  New 
York  county,  whenever  appointed  as  here- 
inbefore provided,  with  a  stenographer,  whose 
salary  shall  not  exceed  the  rate  of  two  thou- 
sand dollars  a  year  each,  such  employees  to 
be  appointed  by  the  state  comptroller.  Sec- 
ond, a  sum  to  be  used  in  defraying  the  ex- 
penses for  office  rent,  stationery,  postage, 
process  serving  and  other  similar  expenses 
necessarily  incurred  in  the  appraisal  of 
estates,  not  exceeding  fifteen  thousand  dol- 
lars a  year  in  New  York  county  and  ^ve 
thousand  dollars  a  year  in  Kings,  and  Bronx 
counties. 

§  230.  Proceeding  by  appraiser.  In  each 
county  in  which  the  office  of  appraiser  is  not 
salaried  the  county  treasurer  shall  act  as 
appraiser.  The  surrogate,  either  upon  his 
own  motion,  or  upon  the  application  of  any 
interested  person,  including  the  state  comp- 
troller, shall  by  order  direct  the  person  or 
one  of  the  persons  appointed  pursuant  to 
section  two  hundred  and  twenty-nine  of  this 
article  in  counties  in  which  the  office  of  ap- 
praiser is  salaried,  and  in  other  counties,  the 
county  treasurer,  to  fix  the  fair  market  value 
of  property  of  persons  whose  estates  shall 
be  subject  to  the  payment  of  any  tax  im- 
posed by  this  article. 

26 


Every  such  appraiser  shall  forthwith  give 
notice  by  mail  to  all  persons  known  to  have 
a  claim  or  interest  in  the  property  to  be 
appraised,  including  the  state  comptroller, 
and  to  such  persons  as  the  surrogate  may 
by  order  direct,  of  the  time  and  place  when 
he  will  appraise  such  property.  He  shall 
at  such  time  and  place  appraise  the  same 
at  its  fair  market  value  as  herein  prescribed; 
and  for  that  purpose  the  said  appraiser  is 
authorized  to  issue  subpoenas  and  to  compel 
the  attendance  of  witnesses  before  him  and 
to  take  the  evidence  of  such  witnesses  under 
oath  concerning  such  property  and  the  value 
thereof;  and  he  shall  make  report  thereof  and 
of  such  value  in  writing,  to  the  said  surro- 
gate, together  with  the  depositions  of  the 
witnesses  examined,  and  such  other  facts  in 
relation  thereto  and  to  said  matter  as  the 
surrogate  may  order  or  require.  Every  ap- 
praiser, except  in  the  counties  in  which  the 
office  of  appraiser  is  salaried,  for  which  pro- 
vision is  hereinbefore  made,  shall  be  paid  by 
the  state  comptroller  and  after  the  audit  of 
said  state  comptroller,  his  actual  and  neces- 
sary traveling  expenses  and  the  fees  paid 
such  witnesses,  which  fees  shall  be  the  same 
as  those  now  paid  to  witnesses  subpoenaed 
to  attend  in  courts  of  record,  payment  to  be 
made  out  of  funds  in  the  hands  of  the  county 
treasurer  of  the  proper  county  on  account  of 
the  tax  imposed  under  the  provisions  of  this 
article. 

The  value  of  every  future  or  limited  estate, 
income,  interest  or  annuity  dependent  upon 

27 


any  life  or  lives  in  being,  shall  be  determined 
by  the  rule,  method  and  standard  of  mor- 
tality and  value  employed  by  the  superin- 
tendent of  insurance  in  ascertaining  the  value 
of  policies  of  life  insurance  and  annuities  for 
the  determination  of  liabilities  of  life  insur- 
ance companies,  except  that  the  rate  of  in- 
terest for  making  such  computation  shall  be 
five  per  centum  per  annum. 

In  estimating  the  value  of  any  estate  or 
interest  in  property,  to  the  beneficial  enjoy- 
ment or  possession  whereof  there  are  persons 
or  corporations  presently  entitled  thereto,  no 
allowance  shall  be  made  on  account  of  any 
contingent  incumbrance  thereon,  nor  on  ac- 
count of  any  contingency  upon  the  happen- 
ing of  which  the  estate  or  property  or  some 
part  thereof  or  interest  therein  might  be 
abridged,  defeated  or  diminished;  provided, 
however,  that  in  the  event  of  such  incum- 
brance taking  effect  as  an  actual  burden 
upon  the  interest  of  the  beneficiary,  or  in 
the  event  of  the  abridgment,  defeat  or  dimi- 
nution of  said  estate  or  property  or  interest 
therein  as  aforesaid,  a  return  shall  be  made 
to  the  person  properly  entitled  thereto  of  a 
proportionate  amount  of  such  tax  on  account 
of  the  incumbrance  when  taking  effect,  or  so 
much  as  will  reduce  the  same  to  the  amount 
which  would  have  been  assessed  on  account 
of  the  actual  duration  or  extent  of  the  estate 
or  interest  enjoyed.  Such  return  of  tax  shall 
be  made  in  the  manner  provided  by  section 
two  hundred  and  twenty-five  of  this  article. 

Where  any  property  shall,  after  the  pas- 

28 


sage  of  this  chapter,  be  transferred  subject 
to  any  charge,  estate  or  interest,  determi- 
nable by  the  death  of  any  person,  or  at  any 
period  ascertainable  only  by  reference  to 
death,  the  increase  accruing  to  any  person 
or  corporation  upon  the  extinction  or  deter- 
mination of  such  charge,  estate  or  interest, 
shall  be  deemed  a  transfer  of  property  tax- 
able under  the  provisions  of  this  article  in 
the  same  manner  as  though  the  person  or 
corporation  beneficially  entitled  thereto  had 
then  acquired  such  increase  from  the  person 
from  whom  the  title  to  their  respective  estates 
or  interests  is  derived. 

When  property  is  transferred  in  trust  or 
otherwise,  and  the  rights,  interest  or  estates 
of  the  transferees  are  dependent  upon  con- 
tingencies or  conditions  whereby  they  may 
be  wholly  or  in  part  created,  defeated,  ex- 
tended or  abridged,  a  tax  shall  be  imposed 
upon  said  transfer  at  the  highest  rate  which, 
on  the  happening  of  any  of  the  said  contin- 
gencies or  conditions,  would  be  possible  under 
the  provisions  of  this  article,  and  such  tax 
so  imposed  shall  be  due  and  payable  forth- 
with by  the  executors  or  trustees  out  of  the 
property  transferred,  and  the  surrogate  shall 
enter  a  temporary  order  determining  the 
amount  of  said  tax  in  accordance  with  this 
provision;  provided,  however,  that  on  the 
happening  of  any  contingency  whereby  the 
said  property,  or  any  part  thereof,  is  trans- 
ferred to  a  person  or  corporation  exempt 
from  taxation  under  the  provisions  of  this 
article,  or  to  any  person  taxable  at  a  rate 

29 


less  than  the  rate  imposed  and  paid,  such 
person  or  corporation  shall  be  entitled  to  a 
return  of  so  much  of  the  tax  imposed  and 
paid  as  is  the  difference  between  the  amount 
paid  and  the  amount  which  said  person  or 
corporation  should  pay  under  the  provisions 
of  this  article;  and  the  executor  or  trustee 
of  each  estate,  or  the  legal  representative 
having  charge  of  the  trust  fund,  shall  im- 
mediately upon  the  happening  of  said  con- 
tingencies or  conditions  apply  to  the  surro- 
gate of  the  proper  county,  upon  a  verified 
petition  setting  forth  all  the  facts,  and  giving 
at  least  ten  days'  notice  by  mail  to  all  in- 
terested persons  or  corporations,  for  an  order 
modifying  the  temporary  taxing  order  of  said 
surrogate  so  as  to  provide  for  the  final  assess- 
ment and  determination  of  the  tax  in  accord- 
ance with  the  ultimate  transfer  or  devolution 
of  said  property.  Such  return  of  overpay- 
ment shall  be  made  in  the  manner  provided 
by  section  two  hundred  and  twenty-five  of 
this  article. 

Estates  in  expectancy  which  are  contin- 
gent or  defeasible  and  in  which  proceedings 
for  the  determination  of  the  tax  have  not 
been  taken  or  where  the  taxation  thereof 
has  been  held  in  abeyance,  shall  be  appraised 
at  their  full,  undiminished  value  when  the 
persons  entitled  thereto  shall  come  into  the 
beneficial  enjoyment  or  possession  thereof, 
without  diminution  for  or  on  account  of  any 
valuation  theretofore  made  of  the  particular  es- 
tates for  purposes  of  taxation,  upon  which  said 
estates  in  expectancy  may  have  been  limited. 

30 


Where  an  estate  for  life  or  for  years  can 
be  divested  by  the  act  or  omission  of  the 
legatee  or  devisee  it  shall  be  taxed  as  if 
there  were  no  possibility  of  such  divesting. 

The  report  of  the  appraiser  shall  be  made 
in  duplicate,  one  of  which  duplicates  shall 
be  filed  in  the  office  of  the  surrogate  and 
the  other  in  the  office  of  the  state  comptroller. 

§  231.  Determination  of  surrogate.  From 
such  report  of  appraisal  and  other  proof  re- 
lating to  any  such  estate  before  the  surro- 
gate, the  surrogate  shall  forthwith,  as  of 
course,  determine  the  cash  value  of  all  es- 
tates and  the  amount  of  tax  to  which  the 
same  are  liable;  or  the  surrogate  may  so 
determine  the  cash  value  of  all  such  estates 
and  the  amount  of  tax  to  which  the  same 
are  liable,  without  appointing  an  appraiser. 

The  superintendent  of  insurance  shall,  on 
the  application  of  any  surrogate,  determine 
the  value  of  any  such  future  or  contingent 
estates,  income  or  interest  therein  limited, 
contingent,  dependent  or  determinable  upon 
the  life  or  lives  of  persons  in  being,  upon 
the  facts  contained  in  any  such  appraiser's 
report,  and  certify  the  same  to  the  surrogate, 
and  his  certificate  shall  be  conclusive  evi- 
dence that  the  method  of  computation 
adopted  therein  is  correct. 

The  surrogate  shall  immediately  give 
notice,  upon  the  determination  by  him  as 
to  the  value  of  any  estate  which  is  taxable 
under  this  article,  and  of  the  tax  to  which 
it  is  liable,  to  all  persons  known  to  be  in- 

31 


terested  therein,  and  shall  immediately  for- 
ward a  copy  of  such  taxing  order  to  the  state 
comptroller.  The  surrogate  shall  also  for- 
ward to  the  state  comptroller  copies  of  all 
orders  entered  by  him  in  relation  to  or  affect- 
ing in  any  way  the  transfer  tax  on  any  estate, 
including  orders  of  exemption. 

If,  however,  it  appear  at  any  stage  of  the 
proceedings  that  any  of  such  persons  known 
to  be  interested  in  the  estate  is  an  infant  or 
an  incompetent,  the  surrogate  may,  if  the 
interest  of  such  infant  or  incompetent  is 
presently  involved  and  is  adverse  to  that 
of  any  of  the  other  persons  interested  there- 
in, appoint  a  special  guardian  of  such  infant; 
but  nothing  in  this  provision  shall  affect  the 
right  of  an  infant  over  fourteen  years  of  age 
or  of  any  one  on  behalf  of  an  infant  under 
fourteen  years  of  age  to  nominate  and  apply 
for  the  appointment  of  a  special  guardian 
for  such  infant  at  any  stage  of  the  pro- 
ceedings. 

§  232.  Appeal  and  other  proceedings.  The 
state  comptroller  or  any  person  dissatisfied 
with  the  appraisement  or  assessment  and 
determination  of  tax  may  appeal  there- 
from to  the  surrogate  within  sixty  days 
from  the  fixing,  assessing  and  determination 
of  tax  by  the  surrogate  as  herein  provided, 
upon  filing  in  the  office  of  the  surrogate  a 
written  notice  of  appeal,  which  shall  state 
the  grounds  upon  which  the  appeal  is  taken; 
but  no  costs  shall  be  allowed  by  the  surro- 
gate on  such  appeal. 

32 


Within  two  years  after  the  entry  of  an 
order  or  decree  of  a  surrogate  determining 
the  value  of  an  estate  and  assessing  the  tax 
thereon,  the  state  comptroller  may,  if  he 
believes  that  such  appraisal,  assessment  or 
determination  has  been  fraudulently,  col- 
lusively  or  erroneously  made,  make  appH- 
cation  to  a  justice  of  the  supreme  court  of 
the  judicial  district  embracing  the  surro- 
gate's court  in  which  the  order  or  decree 
has  been  filed,  for  a  reappraisal  thereof. 
The  justice  to  whom  such  application  is 
made  may  thereupon  appoint  a  competent 
person  to  reappraise  such  estate.  Such  ap- 
praiser shall  possess  the  powers  and  be  sub- 
ject to  the  duties  of  an  appraiser  under 
section  two  hundred  and  thirty  and  shall 
receive  compensation  at  the  rate  of  ^ye 
dollars  per  day  for  every  day  actually  and 
necessarily  employed  in  such  appraisal. 
Such  compensation  shall  be  payable  by  the 
state  comptroller  or  county  treasurer  out  of 
any  funds  he  may  have  on  account  of  any 
tax  imposed  under  the  provisions  of  this 
article,  upon  the  certificate  of  the  justice 
appointing  him.  The  report  of  such  ap- 
praiser shall  be  filed  with  the  justice  by 
whom  he  was  appointed,  and  thereafter  the 
same  proceedings  shall  be  taken  and  had 
by  and  before  such  justice  as  are  herein 
provided  to  be  taken  and  had  by  and  before 
the  surrogate.  The  determination  and  as- 
sessment of  such  justice  shall  supersede  the 
determination  and  assessment  of  the  surro- 
gate, and  shall  be  filed  by  such  justice  in 

33 


the  office  of  the  state  comptroller,  and  a 
certified  copy  thereof  transmitted  to  the  sur- 
rogate's court  of  the  proper  county. 

§  233.  Composition  of  transfer  tax  upon 
certain  estates.  The  state  comptroller,  by 
and  with  the  consent  of  the  attorney-general 
expressed  in  writing,  is  hereby  empowered 
and  authorized  to  enter  into  an  agreement 
with  the  trustees  of  any  estate  in  which  re- 
mainders or  expectant  estates  have  been  of 
such  a  nature,  or  so  disposed  and  circum- 
stanced, that  the  taxes  therein  were  held 
not  presently  payable,  or  where  the  inter- 
ests of  the  legatees  or  devisees  were  not  as- 
certainable under  the  provisions  of  chapter 
four  hundred  and  eighty-three  of  the  laws  of 
eighteen  hundred  and  eighty-five;  chapter 
three  hundred  and  ninety-nine  of  the  laws 
of  eighteen  hundred  and  ninety-two,  or  chap- 
ter nine  hundred  and  eight  of  the  laws  of 
eighteen  hundred  and  ninety-six,  and  the 
several  acts  amendatory  thereof  and  sup- 
plemental thereto;  and  to  compound  such 
taxes  upon  such  terms  as  may  be  deemed 
equitable  and  expedient;  and  to  grant  dis- 
charge to  said  trustees  upon  the  payment 
of  the  taxes  provided  for  in  such  composi- 
tion, provided,  however,  that  no  such  com- 
position shall  be  conclusive  in  favor  of  said 
trustees  as  against  the  interest  of  such  ces- 
tuis  que  trust  as  may  possess  either  present 
rights  of  enjoyment,  or  fixed,  absolute  or 
indefeasible  rights  of  future  enjoyment,  or 
of  such  as  would  possess  such  rights  in  the 

34 


event  of  the  immediate  termination  of  par- 
ticular estates,  unless  they  consent  thereto, 
either  personally,  when  competent,  or  by 
guardian  or  committee.  Composition  or 
settlement  made  or  effected  under  the  pro- 
visions of  this  section  shall  be  executed  in 
triplicate,  and  one  copy  filed  in  the  oflSce 
of  the  state  comptroller,  one  copy  in  the 
office  of  the  surrogate  of  the  county  in  which 
the  tax  was  paid,  and  one  copy  delivered  to 
the  executors,  administrators  or  trustees 
who  shall  be  parties  thereto. 

§  234.  Surrogate's  assistants  in  New 
York,  Kings  and  other  counties.  The  state 
comptroller  may,  upon  the  recommendation 
of ;the  surrogate,  appoint,  and  may  at  pleas- 
ure remove,  assistants  and  clerks  in  the  sur- 
rogate's offices  of  the  following  counties,  at 
annual  salaries  to  be  fixed  by  him  not  to 
exceed  the  amounts  hereinafter  specified: 

1.  In  New  York  county,  a  transfer  tax 
assistant,  five  thousand  dollars;  a  transfer 
tax  clerk,  two  thousand  four  hundred  dol- 
lars; an  assistant  clerk,  eighteen  hundred 
dollars;  a  recording  clerk,  thirteen  hundred 
dollars;  a  stenographer,  twelve  hundred  dol- 
lars; and  shall  be  entitled  to  expend  not 
more  than  seven  hundred  and  fifty  dollars 
a  year  in  such  office  for  expenses  necessarily 
incurred  in  the  assessment  and  collection  of 
taxes  under  this  article. 

2.  In  Kings  county,  a  transfer  tax  assist- 
ant, four  thousand  dollars;  a  transfer  tax 
clerk,   two   thousand   dollars;    an   assistant 

35 


clerk,  fifteen  hundred  dollars;  and  shall  be 
entitled  to  expend  not  more  than  five  hun- 
dred dollars  a  year  for  expenses  necessarily 
incurred  in  the  assessment  and  collection  of 
taxes  under  this  article. 

3.  In  Erie  county,  a  transfer  tax  clerk, 
eighteen  hundred  dollars. 

4.  In  Westchester  county,  a  transfer  tax 
assistant,  two  thousand  five  hundred  dollars. 

5.  In  Albany  county,  a  transfer  tax  clerk, 
fifteen  hundred  dollars. 

6.  In  Queens  county,  a  transfer  tax  clerk, 
fifteen  hundred  dollars. 

7.  In  Onondaga  county,  a  transfer  tax 
clerk,  twelve  hundred  dollars. 

8.  In  Monroe  county,  two  transfer  tax 
clerks,  one  thousand  dollars  each;  and  shall 
be  entitled  to  expend  not  more  than  two 
hundred  dollars  a  year  for  expenses  neces- 
sarily incurred  in  the  assessment  and  col- 
lection of  taxes  under  this  article. 

9.  In  Dutchess  county,  a  transfer  tax 
clerk,  nine  hundred  dollars. 

10.  In  Oneida  county,  not  more  than  two 
transfer  tax  clerks,  twelve  hundred  dollars 
in  the  aggregate. 

11.  In  Suffolk  county,  a  transfer  tax  clerk, 
one  thousand  dollars. 

12.  In  Ulster  county,  a  transfer  tax  clerk, 
seven  hundred  and  twenty  dollars. 

13.  In  Richmond  county,  a  transfer  tax 
clerk,  one  thousand  dollars. 

14.  In  Nassau  county,  a  transfer  tax  clerk, 
twelve  hundred  dollars. 

Such  salaries  and  expenses  shall  be  paid 

36 


monthly  by  the  state  comptroller,  upon 
proper  vouchers,  out  of  any  funds  in  his 
hands  on  account  of  taxes  collected  under 
this  article. 

§235.  Proceedings  by  district  attorneys. 
If,  after  the  expiration  of  eighteen  months 
from  the  accrual  of  any  tax  under  this  article, 
such  tax  shall  remain  due  and  unpaid,  after 
the  refusal  or  neglect  of  the  persons  liable 
therefor  to  pay  the  same,  the  state  comp- 
troller shall  notify  the  district  attorney  of 
the  county,  in  writing,  of  such  failure  or 
neglect,  and  such  district  attorney  shall  apply 
to  the  surrogate's  court  for  a  citation,  citing 
the  persons  liable  to  pay  such  tax  to  appear 
before  the  court  on  the  day  specified,  not 
more  than  three  months  after  the  date  of 
such  citation,  and  show  cause  why  the  tax 
should  not  be  paid.  The  surrogate,  upon 
such  application,  and  whenever  it  shall  ap- 
pear to  him  that  any  such  tax  accruing  under 
this  article  has  not  been  paid  as  required  by 
law,  shall  issue  such  citation,  and  the  service 
of  such  citation,  and  the  time,  manner  and 
proof  thereof,  and  the  hearing  and  determina- 
tion thereon  and  the  enforcement  of  the  de- 
termination or  order  made  by  the  surrogate 
shall  conform  to  the  provisions  of  the  code 
of  civil  procedure  for  the  service  of  citations 
out  of  the  surrogate's  court,  and  the  hearing 
and  determination  thereon  and  its  enforce- 
ment so  far  as  the  same  may  be  applicable. 
The  surrogate  or  his  clerk  shall,  upon  request 
of  the  district  attorney  or  the  state  comp- 

37 


troller,  furnish,  without  fee,  one  or  more 
transcripts  of  such  decree,  which  shall  be 
docketed  and  filed  by  the  county  clerk  of 
any  county  of  the  state  without  fee,  in  the 
same  manner  and  with  the  same  effect  as 
provided  by  law  for  filing  and  docketing 
transcripts  of  decrees  of  the  surrogate's  court. 
The  costs  awarded  by  any  such  decree  after 
the  collection  and  payment  of  the  tax  to  the 
state  comptroller  or  county  treasurer  may 
be  retained  by  the  district  attorney  for  his 
own  use.  Such  costs  shall  be  fixed  by  the 
surrogate  in  his  discretion,  but  shall  not  ex- 
ceed in  any  case  where  there  has  not  been 
a  contest,  the  sum  of  one  hundred  dollars,  or 
where  there  has  been  a  contest,  the  sum  of 
two  hundred  and  fifty  dollars.  Whenever 
the  surrogate  shall  certify  that  there  was 
probable  cause  for  issuing  a  citation  and  tak- 
ing the  proceedings  specified  in  this  section, 
the  state  comptroller,  after  the  same  shall 
have  been  audited  by  him,  shall  pay  all  ex- 
penses incurred  for  the  service  of  citations 
and  other  lawful  disbursements  not  other- 
wise paid,  from  funds  in  his  hands  on  account 
of  such  tax,  or  in  a  county  in  which  the 
office  of  appraiser  is  not  salaried,  by  a  war- 
rant upon  the  county  treasurer  of  such 
county  for  the  payment  by  him  of  the  same 
from  funds  in  his  hands  on  account  of  such 
tax.  In  proceedings  to  which  the  state 
comptroller  is  cited  as  a  party  under  sec- 
tions two  hundred  and  twenty-eight  and  two 
hundred  and  thirty  of  this  article,  he  is 
authorized  to  designate  and  retain  counsel 

38 


to  represent  him  and  to  pay  the  expenses 
thereby  incurred  out  of  the  funds  which  may 
be  in  his  hands  on  account  of  this  tax  in  any 
case  in  a  county  where  the  office  of  appraiser 
is  salaried,  and  in  any  other  county  the  state 
comptroller  shall  by  warrant  direct  the 
county  treasurer  to  pay  such  expenses  out 
of  any  funds  which  may  be  in  his  hands  on 
account  of  this  tax;  provided,  however,  that 
in  the  collection  of  taxes  upon  estates  of 
nonresident  decedents  the  state  comptroller 
shall  not  allow  for  legal  services  up  to  and 
including  the  entry  of  the  order  of  the  sur- 
rogate fixing  the  tax  a  sum  exceeding  ten 
per  centum  of  the  taxes  and  penalties  col- 
lected. 

§236.  Receipts  from  county  treasurer  or 
comptroller.  One  of  the  duplicate  receipts 
issued  for  the  payment  of  any  tax  under 
this  article,  as  provided  by  section  two  hun- 
dred and  twenty-two,  shall  be  countersigned 
by  the  state  treasurer  if  the  same  was  issued 
by  the  state  comptroller,  and  by  the  state 
comptroller  if  issued  by  any  county  treas- 
urer. The  officer  so  countersigning  the  same 
shall  charge  the  officer  receiving  the  tax  with 
the  amount  thereof  and  affix  the  seal  of  his 
office  to  the  same  and  return  to  the  proper 
person;  but  no  executor,  administrator  or 
trustee  shall  be  entitled  to  a  final  accounting 
of  an  estate  in  settlement  of  which  a  tax  is 
due  under  the  provisions  of  this  article  un- 
less he  shall  produce  a  receipt  so  sealed  and 
countersigned,  or  a  certified  copy  thereof. 

39 


Any  person  shall,  upon  the  payment  of  fifty 
cents  to  the  officer  issuing  such  receipt,  be 
entitled  to  a  duplicate  thereof,  to  be  signed, 
sealed  and  countersigned  in  the  same  manner 
as  the  original. 

Any  person  shall,  upon  the  payment  of 
fifty  cents,  be  entitled  to  a  certificate  of  the 
state  comptroller  that  the  tax  upon  the 
transfer  of  any  real  estate  of  which  any  de- 
cedent died  seized  has  been  paid,  such  cer- 
tificate to  designate  the  real  property  upon 
which  such  tax  is  paid,  the  name  of  the  per- 
son so  paying  the  same,  and  whether  in  full 
of  such  tax.  Such  certificate  may  be  re- 
corded in  the  office  of  the  county  clerk  or 
register  of  the  county  where  such  real  prop- 
erty is  situate,  in  a  book  to  be  kept  by  him 
for  that  purpose,  which  shall  be  labeled 
"transfer  tax." 

§  237.  Fees  of  county  treasurer.  The 
treasurer  of  each  county  in  which  the  office 
of  appraiser  is  not  salaried  shall  be  allowed 
to  retain,  on  all  taxes  paid  and  accounted 
for  by  him  each  fiscal  year  under  this  article, 
five  per  centum  on  the  first  fifty  thousand 
dollars,  two  and  one-half  per  centum  on  the 
next  fifty  thousand  dollars,  and  one  per 
centum  on  all  additional  sums.  Such  fees 
shall  be  in  addition  to  the  salaries  and  fees 
now  allowed  by  law  to  such  officers. 

§  238.  Book  and  forms  to  be  furnished  by 
the  state  comptroller.  The  state  comptrol- 
ler shall  furnish  to  each  surrogate  a  book, 

40 


which  shall  be  a  public  record,  and  in  which 
he  shall  enter  the  name  of  every  decedent 
upon  whose  estate  an  application  to  him  has 
been  made  for  the  issue  of  letters  of  admin- 
istration, or  letters  testamentary,  or  ancillary 
letters,  the  date  and  place  of  death  of  such 
decedent,  the  estimated  value  of  his  real  and 
personal  property,  the  names,  places  of  resi- 
dence and  relationship  to  him  of  his  heirs- 
at-law,  the  names  and  places  of  residence  of 
the  legatees  and  devisees  in  any  will  of  any 
such  decedent,  the  amount  of  each  legacy 
and  the  estimated  value  of  any  real  prop- 
erty devised  therein,  and  to  whom  devised. 
These  entries  shall  be  made  from  the  data 
contained  in  the  papers  filed  on  any  such 
application,  or  in  any  proceeding  relating  to 
the  estate  of  the  decedent.  The  surrogate 
shall  also  enter  in  such  book  the  amount  of 
the  personal  property  of  any  such  decedent, 
as  shown  by  the  inventory  thereof  when 
made  and  filed  in  his  office,  and  the  returns 
made  by  any  appraiser  appointed  by  him 
under  this  article,  and  the  value  of  annuities, 
life  estates,  terms  of  years,  and  other  prop- 
erty of  any  such  decedent  or  given  by  him 
in  his  will  or  otherwise,  as  fixed  by  the  sur- 
rogate, and  the  tax  assessed  thereon,  and 
the  amounts  of  any  receipts  for  payment  of 
any  tax  on  the  estate  of  such  decedent  under 
this  article  filed  with  him.  The  state  comp- 
troller shall  also  furnish  to  each  surrogate 
forms  for  the  reports  to  be  made  by  such 
surrogate,  which  shall  correspond  with  the 
entries  to  be  made  in  such  book. 

41 


§  239.  Reports  of  surrogate  and  county 
clerk.  Each  surrogate  shall,  on  January, 
April,  July  and  October  first  of  each  year, 
make  a  report,  upon  the  forms  furnished  by 
the  comptroller  containing  all  the  data  and 
matters  required  to  be  entered  in  such  book, 
which  shall  be  immediately  forwarded  to  the 
state  comptroller.  The  county  clerk  of  each 
county,  except  in  the  counties  where  the 
registers  perform  the  duties  of  the  county 
clerk  with  respect  to  the  recording  of  deeds, 
and  when  in  such  counties  the  registers,  shall, 
at  the  same  times,  make  reports  containing 
a  statement  of  any  deed  or  other  convey- 
ance filed  or  recorded  in  his  oflSce,  of  any 
property,  which  appears  to  have  been  made 
or  intended  to  taike  effect  in  possession  or 
enjoyment  after  the  death  of  the  grantor  or 
vendor,  with  the  name  and  place  of  residence 
of  such  grantor  or  vendor,  the  name  and  place 
of  residence  of  the  grantee  or  vendee,  and  a 
description  of  the  property  transferred,  which 
shall  be  immediately  forwarded  to  the  state 
comptroller. 

§  240.  Reports  of  county  treasurer.  Each 
county  treasurer  in  a  county  in  which  the 
oflSce  of  appraiser  is  not  salaried  shall  make 
a  report,  under  oath,  to  the  state  comptroller, 
on  January,  April,  July  and  October  first  of 
each  year,  of  all  taxes  received  by  him  under 
this  article,  stating  for  what  estate  and  by 
whom  and  when  paid.  The  form  of  such 
report  may  be  prescribed  by  the  state  comp- 
troller.    He  shall,  at  the  same  time,  pay  the 

42 


state  treasurer  all  taxes  received  by  him 
under  this  article  and  not  previously  paid 
into  the  state  treasury,  except  as  provided 
in  the  next  section,  and  for  all  such  taxes 
collected  by  him  and  not  paid  into  the  state 
treasury  within  thirty  days  from  the  times 
herein  required,  he  shall  pay  interest  at  the 
rate  of  ten  per  centum  per  annum. 

§  241.  Report  of  state  comptroller ;  pay- 
ment of  taxes;  refunds  in  certain  cases. 
The  state  comptroller  shall  deposit  all  taxes 
collected  by  him  under  this  article,  except  as 
hereinafter  otherwise  provided,  in  a  respon- 
sible bank,  banking  house  or  trust  company 
in  the  city  of  Albany,  which  shall  pay  the 
highest  rate  of  interest  to  the  state  for  such 
deposit,  to  the  credit  of  the  state  comptroller 
on  account  of  the  transfer  tax.  And  every 
such  bank,  banking  house  or  trust  company 
shall  execute  and  file  in  his  office  an  under- 
taking to  the  state,  in  the  sum,  and  with 
such  sureties,  as  are  required  and  approved 
by  the  comptroller,  for  the  safe  keeping  and 
prompt  payment  on  legal  demand  therefor 
of  all  such  moneys  held  by  or  on  deposit  in 
such  bank,  banking  house  or  trust  company, 
with  interest  thereon  on  daily  balances  at 
such  rate  as  the  comptroller  may  fix.  Every 
such  undertaking  shall  have  indorsed  thereon, 
or  annexed  thereto,  the  approval  of  the  at- 
torney-general as  to  its  form.  The  state 
comptroller  shall  on  the  first  day  of  each 
month  make  a  verified  return  to  the  state 
treasurer  of  all  taxes  received  by  him  under 

43 


this  article,  stating  for  what  estate,  and  by 
whom  and  when  paid;  and  shall  credit  him- 
self with  all  expenditures  made  since  his  last 
previous  return  on  account  of  such  taxes, 
for  salary,  refunds  or  other  purposes  law- 
fully chargeable  thereto.  He  shall  on  or  be- 
fore the  tenth  day  of  each  month  pay  to  the 
state  treasurer  the  balance  of  such  taxes  re- 
maining in  his  hands  at  the  close  of  business 
on  the  last  day  of  the  previous  month,  as 
appears  from  such  returns.  Whenever  the 
tax  on  a  contingent  remainder  has  been  de- 
termined at  the  highest  rate  which  on  the 
happening  of  any  of  said  contingencies  or 
conditions  would  be  possible  under  the  pro- 
visions of  this  article,  the  state  comptroller, 
in  the  counties  wherein  this  tax  is  payable 
direct  to  him,  and  in  all  other  counties  the 
treasurer  of  said  counties,  respectively,  when 
such  tax  is  paid  shall  retain  and  hold  to  the 
credit  of  said  estate  so  much  of  the  tax 
assessed  upon  such  contingent  remainders 
as  represents  the  difference  between  the 
tax  at  the  highest  rate  and  the  tax  upon 
such  remainders  which  would  be  due  if  the 
contingencies  or  conditions  had  happened  at 
the  date  of  the  appraisal  of  said  estate,  and 
the  state  comptroller  or  the  county  treasurer 
shall  deposit  the  amount  of  tax  so  retained 
in  some  solvent  trust  company  or  trust  com- 
panies or  savings  banks  in  this  state,  to  the 
credit  of  such  estate,  paying  the  interest 
thereon  when  collected  by  him  to  the  execu- 
tor or  trustee  of  said  estate,  to  be  applied 
by  said  executor  or  trustee  as  provided  by 

44 


the  decedent's  will.  Upon  the  happening  of 
the  contingencies  or  conditions  whereby  the 
remainder  ultimately  vests  in  possession,  if 
the  remainder  then  passes  to  persons  taxable 
at  the  highest  rate,  the  state  comptroller  or 
the  county  treasurer  shall  turn  over  the 
amount  so  retained  by  him  to  the  state 
treasurer  as  provided  herein  and  by  section 
two  hundred  and  forty  of  this  article,  or  if 
the  remainder  ultimately  vests  in  persons 
taxable  at  a  lower  rate  or  a  person  or  cor- 
poration exempt  from  taxation  by  the  pro- 
visions of  this  article,  the  state  comptroller 
or  the  county  treasurer  shall  refund  any  ex- 
cess of  tax  so  held  by  him  to  the  executor 
or  trustee  of  the  estate,  to  be  disposed  of  by 
said  executor  or  trustee  as  provided  by  the 
decedent's  will.  Executors  or  trustees  of 
any  estate  may  elect  to  assign  to  and  deposit 
with  the  state  comptroller  or  the  county 
treasurer,  bonds  or  other  securities  of  the 
estate  approved  by  the  state  comptroller,  or 
the  county  treasurer,  both  as  to  the  form  of 
the  collateral  and  the  amount  thereof,  for 
the  purpose  of  securing  the  payment  of  the 
difference  between  the  tax  on  said  remainder 
at  the  highest  rate  and  the  tax  upon  said 
remainder  which  would  be  due  if  the  con- 
tingencies or  conditions  had  happened  at  the 
date  of  the  appraisal  of  said  estate,  and  cash 
for  the  balance  of  said  tax  as  assessed,  which 
said  bonds  or  other  securities  shall  be  held  by 
the  state  comptroller,  or  the  county  treas- 
urer, to  the  credit  of  said  estate  until  the 
actual  vesting  of  said  remainders,  the  income 

45 


therefrom  when  received  by  the  state  comp- 
troller or  the  county  treasurer  to  be  paid 
over  to  the  executor  or  trustee  during  the 
continuance  of  the  trust  estates  and  then  to 
be  finally  disposed  of  in  accordance  with  the 
ultimate  transfer  or  devolution  of  said  re- 
mainders as  hereinbefore  provided;  and  it 
shall  be  the  duty  of  the  executors  or  trustees 
of  such  estates  to  forthwith  notify  the  state 
comptroller  of  the  actual  vesting  of  all  such 
contingent  remainders. 

If  any  executor  or  trustee  shall  have  de- 
posited with  the  state  comptroller,  or  the 
county  treasurer,  cash  or  securities,  or  both 
cash  and  securities,  to  an  amount  in  excess 
of  the  sum  necessary  to  pay  the  transfer  tax 
upon  such  contingent  remainders  at  the  high- 
est rate  as  aforesaid,  the  excess  of  tax  so  de- 
posited shall  be  returned  to  the  executor  or 
trustee,  or  if  any  executor  or  trustee  shall 
have  deposited  with  the  state  comptroller,  or 
the  county  treasurer,  cash  or  securities,  or  both 
cash  and  securities,  to  an  amount  less  than 
is  suflSicient  to  pay  the  tax  upon  such  con- 
tingent remainders  as  finally  assessed  and 
determined,  the  executor  or  trustee  of  said 
estate  shall  forthwith,  upon  the  entry  of  the 
order  determining  the  correct  amount  of  tax 
due,  pay  to  the  state  comptroller,  or  the 
county  treasurer,  whichever  is  entitled  under 
the  provisions  of  this  article  to  receive  the 
tax,  the  balance  due  on  account  of  said  tax. 

§  242.  Application  of  taxes.  All  taxes 
levied  and  collected  under  this  article  when 

46 


paid  into  the  treasury  of  the  state  shall  be 
applicable  to  the  expenses  of  the  state  gov- 
ernment and  to  such  other  purposes  as  the 
legislature  shall  by  law  direct. 

§243.  Definitions.  The  words  "estate'* 
and  "property,"  as  used  in  this  article,  shall 
be  taken  to  mean  the  property  or  interest 
therein  passing  or  transferred  to  individual 
or  corporate  legatees,  devisees,  heirs,  next  of 
kin,  grantees,  donees  or  vendees,  and  not  as 
the  property  or  interest  therein  of  the  de- 
cedent, grantor,  donor  or  vendor  and  shall 
include  all  property  or  interest  therein, 
whether  situated  within  or  without  this  state. 
The  words  "tangible  property"  as  used  in 
this  article  shall  be  taken  to  mean  corporeal 
property  such  as  real  estate  and  goods,  wares 
-and  merchandise,  and  shall  not  be  taken  to 
mean  money,  deposits  in  bank,  shares  of 
stock,  bonds,  notes,  credits  or  evidences  of 
an  interest  in  property  and  evidences  of 
debt.  The  words  "intangible  property"  as 
used  in  this  article  shall  be  taken  to  mean 
incorporeal  property,  including  money,  de- 
posits in  bank,  shares  of  stock,  bonds,  notes, 
credits,  evidences  of  an  interest  in  property 
and  evidences  of  debt.  The  word  "transfer," 
as  used  in  this  article,  shall  be  taken  to  in- 
clude the  passing  of  property  or  any  interest 
therein  in  the  possession  or  enjoyment,  pres- 
ent or  future,  by  inheritance,  descent,  devise, 
bequest,  grant,  deed,  bargain,  sale  or  gift,  in 
the  manner  herein  prescribed.  The  words 
"county  treasurer"  and  "district  attorney," 

47 


as  used  in  this  article,  shall  be  taken  to  mean 
the  treasurer  or  the  district  attorney  of  the 
county  of  the  surrogate  having  jurisdiction 
as  provided  in  section  two  hundred  and 
twenty-eight  of  this  article.  The  words  "the 
intestate  laws  of  this  state,"  as  used  in  this 
article,  shall  be  taken  to  refer  to  all  transfers 
of  property,  or  any  beneficial  interest  therein, 
effected  by  the  statute  of  descent  and  distri- 
bution and  the  transfer  of  any  property,  or 
any  beneficial  interest  therein,  effected  by 
operation  of  law  upon  the  death  of  a  person 
omitting  to  make  a  valid  disposition  thereof, 
including  a  husband's  right  as  tenant  by  the 
curtesy  or  the  right  of  a  husband  to  succeed 
to  the  personal  property  of  his  wife  who  dies 
intestate  leaving  no  descendants  her  sur- 
viving. 

§244.  Exemptions  in  article  one  not  ap- 
plicable. The  exemptions  enumerated  in 
section  four  of  this  chapter  shall  not  be  con- 
strued as  being  applicable  in  any  manner  to 
the  provisions  of  this  article. 

§  245.  Limitation  of  time.  The  provisions 
of  the  code  of  civil  procedure  relative  to 
the  limitation  of  time  of  enforcing  a  civil 
remedy  shall  not  apply  to  any  proceeding  or 
action  taken  to  levy,  appraise,  assess,  deter- 
mine or  enforce  the  collection  of  any  tax  or 
penalty  prescribed  by  this  article,  and  this 
section  shall  be  construed  as  having  been  in 
effect  as  of  date  of  the  original  enactment  of 
the  inheritance  tax  law,  provided,  however, 

48 


that  as  to  real  estate  in  the  hands  of  bona 
fide  purchasers,  the  transfer  tax  shall  be  pre- 
sumed to  be  paid  and  cease  to  be  a  lien  as 
against  such  purchasers  after  the  expiration 
of  six  years  from  the  date  of  accrual. 


49 


APPENDIX 

A  situation  requiring  serious  attention  has 
been  created  by  the  amendments  of  1915, 
which  provide  that  intangible  property  held 
in  joint  tenancy  shall  now  be  taxable  to  the 
survivor  as  if  the  whole  thereof  had  been 
bequeathed  to  the  survivor  by  the  deceased 
joint  tenant. 

Hitherto,  if  a  bona  fide  joint  account  has 
been  established  to  the  satisfaction  of  the 
authorities  of  this  State,  they  have  endeav- 
ored to  ascertain  the  contribution  made  by 
both  parties  to  the  joint  account  and  to  fix 
a  tax  upon  the  portion  received  by  the  sur- 
vivor which  he  had  not  contributed.  In  this 
they  are  apparently  sustained  by  Surrogate 
Fowler  in  the  Matter  of  Heiser,  85  Misc.,  271, 
in  which  he  states : 

"  Joint  ownership  of  personal  property  is 
recognized  by  the  laws  of  this  State.  *  *  * 
The  right  of  the  survivor  to  the  entire 
property  held  by  them  as  joint  tenants 
is  the  distinguishing  characteristic  of  this 
species  of  ownership,  and  if  all  the  prop- 
erty held  jointly  belonged  originally  to 
one  of  the  parties  and  the  rights  of  a 
joint  owner  were  conferred  by  the  orig- 
inal owner  upon  his  joint  tenant  as  a 
gift  intended  to  take  effect  at  or  after 

50 


death,  the  value  of  the  interest  passing 
to  the  survivor  would  be  subject  to  the 
provisions  of  the  Transfer  Tax  Law. 
But  if  the  joint  tenants  have  contributed 
out  of  their  individual  funds  to  the  pur- 
chase of  the  property  held  by  them  as 
joint  tenants,  the  right  of  the  survivor 
to  take  the  entire  property  is  not  a  gift 
from  the  other  joint  tenant,  but  a  right 
derived  from  the  contract  entered  into 
between  them  at  the  time  the  instru- 
ment creating  the  joint  tenance  was 
executed." 

This  statement  was  quoted  with  approval 
by  the  Appellate  Division,  Second  Depart- 
ment, in  Matter  of  Dana  Co.,  164  App.  Div., 
45;  affirmed  in  214  N.  Y.  Mem.  106. 

Again,  in  re  Dalsimer's  Estate,  148  N.  Y. 
Supp.  914,  the  surrogate  held  that  although 
the  money  standing  to  the  credit  of  a  joint 
bank  account  of  decedent  and  his  wife  was 
not  taxable,  a  joint  deposit  with  the  bank  of 
stocks  and  bonds  not  kept  in  a  safe  deposit 
box  rented  by  decedent,  but  in  the  custody 
and  control  of  the  bank  was  taxable  on  the 
death  of  the  husband  because  it  did  not 
appear  that  any  of  the  stocks  and  bonds  in 
question  were  purchased  with  money  belong- 
ing to  the  decedent's  wife  and  therefore  the 
right  of  survivorship  conferred  upon  her  by 
the  creation  of  the  joint  deposit  was  a  gift 
by  the  decedent,  intended  to  take  effect  in 
possession  and  enjoyment  after  his  death, 
within  the  meaning  of  subdivision  4,  section 

51 


220  of  the  Tax  Law.  So  much  of  this  de- 
cision as  imposed  a  transfer  tax  on  the  joint 
deposit  of  stocks  and  bonds  was  reversed  by 
the  Appellate  Division,  First  Department 
(in  the  Matter  of  Estate  of  Samuel  Dalsimer, 
deceased),  153  N.  Y.  Supp.  58,  the  court,  by 
McLaughlin,  J.,  saying: 

"It  seems  to  me  to  be  unnecessary  to 
consider  to  what  extent,  if  any,  the  de- 
cedent's wife  contributed  to  this  joint 
account,  either  in  money  or  securities, 
since  they  could  create  a  joint  owner- 
ship therein,  irrespective  of  what  each 
contributed  with  the  right  of  survivor- 
ship. (Kelly  V.  Beers,  194  N.  Y.  49; 
West  V.  McCullough,  123  App.  Div.  846; 
affirmed  194  N.  Y.  518.) 

"That  the  securities  in  question  were 
held  in  a  joint  account  and  were  intend- 
ed to  be  so  held,  was  conclusively  estab- 
lished by  the  communication  of  July  18, 
1912,  signed  by  the  decedent  and  his 
wife,  to  which  reference  has  already  been 
made.  The  title  to  such  securities  was 
in  them  as  joint  tenants  and  from  that 
time  until  the  decedent's  death  neither  he 
nor  his  wife  had  the  exclusive  title;  on 
the  contrary  each  had  *a  unity  of  in- 
terest; unity  of  title;  unity  of  time  and 
unity  of  possession'  (17  Am.  &  Eng. 
Enc.  of  Law,  Second  Edition,  649), — all 
the  essentials  necessary  to  create  a  joint 
tenancy ;  and,  which,  once  created,  carried 
with  it  the  right  of  survivorship.     It  is 

52 


by  reason  of  this  right  that  it  has  been 
held  that  the  interest  of  a  joint  tenant  is 
not  descendable  and  cannot  be  devised 
by  will.  No  right  passes  by  the  death 
of  one  of  the  joint  tenants  and  its  only 
effect  is  to  vest  the  entire  title  in  the  sur- 
vivor; (Farrelly  v.  Emigrant  Industrial 
Savings  Bank,  92  App.  Div.  529;  affd. 
179  N.  Y.  574) ;  in  other  words,  the  only 
question  determined  by  the  death  is 
which  of  the  joint  tenants  takes  the 
whole.  If  this  be  true,  then  it  follows 
there  is  nothing  upon  which  a  tax  can 
be  imposed,  for  the  transfer  of  the  title 
was  not  made  in  contemplation  of  death. 
In  support  of  this  view,  see  Matter  of 
Tilley(15lN.Y.Supp.79)." 

In  Matter  of  Tilley,  166  App.  Div.  240,  the 
Appellate  Division,  Third  Department,  held: 

"No  right  passes  by  the  death  of  one 
of  the  parties,  for  where  the  deposit  is 
in  the  joint  names  of  the  parties  and 
the  intent  appears — as  it  now  must 
under  the  statute — to  create  the  joint 
tenancy,  its  effect  is  to  vest  title  in  the 
entire  fund  in  the  survivor.*  *  *  The 
right  of  survivorship  vests  in  the  crea- 
tion of  the  joint  tenancy,  and  the  only 
question  determined  by  death  is  which 
shall  take  the  entire  estate.*  *  *  The 
possession  is  given  upon  the  creation  of 
the  estate;  the  rights  are  absolutely  and 
conclusively  fixed,  and  the  only  ques- 
tion which  is  contingent  is  which  of  two 

53 


or  more  joint  tenants  shall  eventually 
own  the  entire  estate.  But  each  is  in 
full  possession,  each  has  full  ownership 
as  against  all  the  world,  with  the  excep- 
tion of  the  equal  right  of  the  others,  and 
the  transfer  which  becomes  fully  deter- 
mined at  the  death  of  one  of  two  joint 
owners  relates  back  to  the  creation  of 
the  estate.  It  was  then  that  the  rights 
vested,  and  the  death  only  determines 
which  shall  be  the  gainer  by  the  trans- 
action. While  there  might  be  a  joint 
tenancy  created  which  would  be  so  ob- 
viously fraudulent  in  its  inception  as  to 
take  it  out  of  the  general  rule,  we  are 
persuaded  that  where  an  account  is 
created  in  the  manner  permitted  by  the 
Banking  Law,  with  all  of  its  incidents 
known  and  recognized  in  the  law,  it  can- 
not be  presumed  that  there  was  any 
other  intention  than  that  which  the  law 
ascribes  to  such  an  act,  and  that  prop- 
erty thus  disposed  of  is  not  *made  in 
contemplation  of  *  *  *  death,'  as  that  lan- 
guage is  understood  in  the  jurisprudence 
of  this  State,  nor  'intended  to  take  effect 
in  possession  or  enjoyment  at  or  after 
such  death.'" 

It  should  be  remembered  that  the  Banking 
Law,  Sec.  198,  specifically  authorizes  the 
creation  of  joint  accounts  in  the  following 
language: 

"*  *  *  When   a   deposit   shall   have 
been  made  by  any  person  in  the  name 

54 


of  such  d^pojsit^r.  .^d^i^piljef/jperson 
and  in  form  to  be  paid  to  either,  or  the 
survivor  of  them,  such  deposit  there- 
upon and  any  additions  thereto  made, 
by  either  of  such  persons,  upon  the 
making  thereof,  shall  become  the  prop- 
erty of  such  persons  as  joint  tenants, 
and  the  same,  together  with  all  interest 
thereon,  shall  be  held  for  the  exclusive 
use  of  the  persons  so  named,  and  may 
be  paid  to  either  during  the  lifetime  of 
both,  or  to  the  survivor  after  the  death 
of  one  of  them;  and  such  payment  and 
the  receipt  or  acquittance  of  the  one  to 
whom  such  payment  is  made,  shall  be 
a  valid  and  suflBcient  release  and  dis- 
charge to  said  company,  for  all  payments 
made  on  account  of  such  deposit  prior 
to  the  receipt  by  said  company  of  notice 
in  writing  signed  by  any  one  of  such 
joint  tenants,  not  to  pay  such  deposit 
in  accordance  with  the  terms  thereof." 

It  is  not  attempted  to  draw  any  conclusion 
from  the  matter  herein  presented,  but  to 
point  out  that  by  the  recent  amendments  to 
the  Transfer  Tax  Law  the  State  is  attempt- 
ing to  assess  a  tax  upon  property  which 
neither  passes  by  will  nor  intestate  law  nor 
**by  deed,  grant,  bargain,  sale  or  gift  made 
in  contemplation  of  death  of  the  grantor,  ven- 
dor or  donor,  or  intended  to  take  effect  in 
possession  or  enjoyment  at  or  after  such 
death"',  inasmuch  as  the  courts  have  thus 
far  held  that  when  a  joint  account  has  been 

55 


properly— cdiistitated  as  pei^tted  by  law, 
property  thus  disposed  of  is  not  transferred 
in  contemplation  of  death,  nor  as  a  gift  in- 
tended to  take  effect  in  possession  or  enjoy- 
ment at  or  after  such  death. 


56 


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